Under Construction Journal Issue 6.1 UNDER CONSTRUCTION JOURNAL 6.1 | Page 45

v MGN, House of Lords preferred a ‘reasonable expectation of privacy’ test over a ‘highly offensive’ test
because it is not only clearer, and less stringent but it also prevents a kind of confusion with
proportionality tests since the highly offensive test implies issues related to balance, such as the degree
of intrusion into private life.
Finally, false light requires the claimant to prove that the defendant was malicious, namely that
they recognized the falsity or recklessly disregarded the truth or falsity of the subject matter of publicity
in the suit. This requirement was initially applied by the Supreme Court in Time, Inc. v. Hill in respect of
which the constitutional considerations applied in defamation, designed to protect the freedom of the
press, should also be applied within false light tort brought by private litigants where the information in
question involves matters of public interest.
In this case, the defendant published certain false information about the claimant and his family
who, having been held hostage by three escaped convicts and realised without harm, later became the
subject of a Broadway play. The national magazine (Time) published a photo in an article describing details
of the family’s daily life, falsely exaggerating the family members’ suffering. The claimant brought false
light proceedings, given that such falsifications did not technically allow defamation proceedings to be
brought against the newspaper. The Supreme Court held that the mere proof of the falsity of the story
was insufficient to recover damages using a false light tort; rather, the claimant had to further prove the
defendant’s malice by indicating that s/he either knows the falsity or exhibited a conscious disregard
towards the potential truth or falsity of the story. The main rationale for imposing the constitutional
restriction of malice requirement in this false light action was a willingness to mitigate the chilling effects
potentially inflicted upon freedom of expression. Free speech rights promote a robust exchange of ideas
and opinions in cultural, social, scientific and political domains, thus encouraging self-governance and a
functioning democracy. However, in Gertz v Ropert Welch, Inc., the Supreme Court held that the
constitutional requirement for demonstrating actual malice (within defamation proceedings against
media defendants) was rescinded if the claimant was a private individual. On that basis, it is for the states
to decide the standard of liability in defamation law where the claimants are private individuals. Thus it is
an unresolved question whether actual malice is a binding requirement in false light tort. This is why the
Restatement of Law, Second (torts) under §. 625E Caveat states that:
“The Institute takes no position on whether there are any circumstances under which
recovery can be obtained under this Section if the actor did not know of or act with reckless
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